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Vicarious Liability is Evolving

Managing Partner

Traditionally, an employer is only responsible for the acts of their employees if their conduct was "in the course of their employment". However with the removal of s 40 Equality Act 2010 which provided for employers being liable for harassment of their employees by third parties, the ever changing case-law in relation to vicarious liability will become important again in the employment arena.

Recently we have seen developments in the law in this area which means the definition of who is an employee being extended. The Supreme Court in Catholic Child Welfare Society and others v Various Claimants (2013), decided that a member of the religious body in question, was an "employee" for the purposes of liability. In this case the Court referred to the Society as a "Quasi-Employer". This is a new term, which has been applied to describe a situation where although they are not technically employed the Society provided accommodation and food and looked after them in retirement. Therefore it had sufficient control over the individuals to be held responsible for their actions. In the Court's view their relationship had "all the essential elements of the relationship between employer and employees".

The leading case in this area still remains Stubbs v Chief Constable of Lincolnshire Police (1999) in which it was held that the acts in question did not strictly have to take place in the course of employment but do need to be job related and sufficiently connected to work. In this case, the incident took place at a work event outside normal working hours but the Police Force was still found to be vicariously liable for their employee`s actions.

The issue of liability when it comes to violence at work has resulted in contradictory decisions. However the cases of Weddall v Barchester Healthcare and Wallbank v Wallbank Fox Designs Ltd (2012), established the importance of the proximity in time to work related incidents and whether the incidents occurred at or close to work, as being crucial factors in determining whether an employer is vicariously liable.

The recent Court of Appeal decision in Mohamud v Morrison Supermarkets (2014) gives even more guidance on the issues and confirms that unless the acts were within the scope of the employee`s employment, an employer will not be found liable. In the Morrison`s case, an employee who worked as a petrol station attendant, seriously assaulted a customer by punching and kicking him after the customer asked him to print some documents from a USB stick. Here the employee`s duties did not include any element of keeping order over customers. Therefore it was decided that he had carried out the attack "purely for reasons of his own" and not as a consequence of his employment. Morrison Supermarkets was therefore not vicariously liable.

The case-law in this area will no doubt continue to evolve and provide valuable guidance for employers on their potential exposure to personal injury claims as a result of their employees' conduct.